A blog about criminal law and indigent defense.

Should a Public Defender Represent President Trump?

Word is out that President Donald Trump may hire a private attorney, now that the FBI is conducting a criminal investigation into his campaign’s contacts with Russia.

This intriguing possibility raises the question:

Should a public defender represent Donald Trump?

In light of the President’s extreme wealth, he will certainly not be appointed a public defender. But many private criminal defense attorneys started their careers as public defenders, and so the President may end up hiring someone who previously worked in indigent defense. Furthermore, the President’s White House colleagues, some of whom are not so rich, may themselves need lawyers, and thus it is not inconceivable that a public defender might eventually participate in the case.

Yet the President’s life and work reflect a profound hostility to the cause of indigent defense. He demagogued the Central Park 5. He appointed Jeff Sessions as Attorney General. He even questioned the right to counsel itself. How could any lawyer, let alone a public defender, represent such a man?

The answer depends on how one justifies the work of a public defender. I see two basic justifications, each of which yields a different answer:

1. The Individual Rights Justification: “The duty of a public defender is to protect people’s individual rights, no matter what. President Trump is a person, and deserves all the rights available to him under law. Therefore, I would defend Donald Trump.”

2. The Social Justice Justification: “The duty of a public defender is to pursue social justice. President Trump’s actions pose a threat to social values I hold dear (equality, security, prosperity, etc.). Therefore, I would not defend Donald Trump.”

Although the two justifications produce contradictory answers in the case of President Trump, they usually function in tandem. Most indigent criminal defendants come from disadvantaged backgrounds and face serious legal jeopardy. Racial and economic inequality are endemic to the American criminal justice system. By advocating for a client’s individual rights, therefore, a public defender also promotes social justice.

Yet, just as in the case of Presidnt Trump, public defenders occasionally encounter situations in their work where the two justifications seem to contradict:

1. Protecting individual rights may come at the cost of social justice, and visa versa.

Take the case of Dylan Roof, the 19-year-old white supremacist who murdered 9 black churchgoers in South Carolina. The public defender who protects Mr. Roof’s rights also advocates for a client who poses a serious threat to racial equality. This situation is not uncommon. Public defenders face a tension between individual rights and social justice whenever they defend clients accused of crimes that are symptomatic of social injustice – hate crimes, rape, workplace-safety accidents, etc.

Conversely, the pursuit of social justice might also come at the cost of individual rights. If a mentally ill defendant refuses a public defender’s counsel, the defender might be forced to argue that the client’s autonomy should be overridden in order to protect broader social values of equality and dignity under the law.

2. Advoating for a client may require advocating against individual rights or social justice.

Imagine a client’s defense hinges on the testimony of a witness who has invoked his Fifth Amendment privilege against self-incrimination and refused to speak in court. The public defender’s only choice will be to argue that that witness has no such privilege and therefore must testify.

Or, consider a client who is accused of child sexual abuse, yet who herself was victimized as a child by an older male relative. In order to protect this client from further trauma, the public defender may have to partipciate in another’s oppression by discrediting the alleged victim at trial.

The most productive response to these contradictions is to cultivate a broad sense of unfairness on behalf of your client. Identify and empathize with all kinds of injustices, whether they are specific to this case or shot through the entire system. When one justification is absent, the other will carry you. When you must compromise one value, the other will provide support.

As Travis Williams puts it in the HBO documentary, Gideon’s Army: “You can’t really look for the same thing to motivate you per client … Every case has a redeeming quality to it, not every person, necessarily.” President Trump’s lawyers will have to look hard for the redeeming qualities in their case.